Most of the government’s orders do not stand the test of law, Senior Advocate DLN Rao

DLN Rao is a designated Senior Advocate of the Karnataka High Court. A veteran lawyer who has spent more than four decades at the Bar, Rao is also the foremost authority on mining laws in the country. Apart from that, he is also the person to be credited for the underground Metro rail system in Bangalore.

. In this interview with Bar & Bench’s Aditya AK, he talks about how things have changed in forty-six years, his most memorable cases, and the role law officers can play in helping reduce pendency.

. (Edited excerpts below)

. Aditya AK: Was law always the plan?

. DLN: Yes, law was my first choice. I am a 5 th generation lawyer. I was 20 years old when I came out of college and couldn’t enroll, so I did a postgraduate diploma in social service administration, in which I secured first rank.

. I enrolled in 1970 and joined the chambers of Shri HB Datar and Shri KS Desai in 1972. After about 6 to 7 years, I concentrated my practice on mining laws, and also handled cases in service matters, constitutional law, etc. I was also a standing counsel for the Karnataka Board of Wakfs from 1984 up to 2004.

. AK: Over the course of more than four decades, what trends have you noticed at the High Court?

. DLN: During my initial years, I noticed that seniors used to take personal interest in the growth and development of their juniors. They used to appreciate good work, correct mistakes and inculcate a sense of discipline and professional ethics. I have, to the best of my ability, followed this principle to this day. I appreciate any youngster if he/she presents a case effectively and render any help if need be.

. I am sorry to say that nowadays, some of the seniors do not provide adequate opportunity to the juniors except for asking them to seek adjournments and pass overs. I believe in entrusting the case file or brief to a junior in the office; tell him or her to study it fully, assist and be with me when I argue, even in engaged matters.

. In short, there is talent in today’s young lawyers and seniors should encourage and shape them into good professionals. Senior Advocates have a greater role to see that the next generation is readied to carry the tradition in the interest of the institution.

. During my formative years, the judges encouraged youngsters. Even to this day I remember Justice VS Malimath granting me time to study further in a part heard matter, when I confessed that I was getting confused over the interpretation of some provision. He readily granted time, cautioning me to examine the issue. His encouraging words ring in my ears. Today, the judges are overworked and overburdened with several cases.

. Yet another change in trend I have noticed in the last two decades is the increasing attitude of persons in authority to deny relief in deserving cases, driving citizens to approach courts by way of writ petitions.

. AK: You were recommended to be elevated to the Bench. Why did you decline?

. DLN: In 1999, the then Chief Justice and a few senior judges asked me to accept and I consented. Unfortunately I lost my younger brother at a young age and I had to withdraw my consent for personal reasons; my conscience did not permit me to accept the post. When a part of my mind is pre-occupied with the consequences of my brother’s death, I felt that I would not be able to devote my entire mind and time for discharging the duties of a judge.

. AK: Do you see any flaws with respect to the current system of appointment of judges?

. DLN: I still strongly believe in the collegium system of appointment, but it should be more transparent and the process can be improved. For elevation to the post of High Court judge, there must be consultation with the Advocate General and a few Senior Advocates. The proceedings should be recorded at least briefly, and the process should commence at least six months in advance, as the date of retirement of judges is known in advance.

. AK: There was a recent controversy wherein members of the Karnataka Bar protested the elevation of lawyers belonging to a certain community.

. DLN: At the very outset, I personally feel that intelligence is not the prerogative of any community. I detest people advocating selection based on caste, creed, community etc. as institutional interest is paramount and appointment is not a distribution under any welfare scheme.

. I am also equally pained at a few retired judges speaking after retirement about incorrect selections which happened during their tenure to which they had objected. It is inconsequential and does not help in any manner, except projecting themselves in a poor light.

. There is a growing tendency in this country, in all walks of life, to criticize the selections in all fields and this is a thorn in the system itself. We should cultivate the habit of trusting the judgment of persons who are in collegium.

. AK: The High Court Bar Association had also demanded the transfer of Chief Justice Mukherjee after he revealed in open Court that he was approached with a bribe.

. DLN: Had not the Chief Justice mentioned it in open court, nobody would understand why the judge was recusing. I can only say that irrespective of which judge it is, if his integrity is questionable, law should be allowed to take its course. At the same time, nobody’s image should be tarnished for no rhyme or reason.

. AK: Do you see a co-relation between pendency of cases and vacancies?

. DLN: Definitely, yes. Today, our sanctioned strength is 62. We are currently functioning with 30 judges, and five judges will retire this year. The judges are overburdened. In the Madras and Allahabad High Courts, recently a large number of judges were appointed. So why is it not happening in Karnataka?

. The High Court, and the Central and state governments have miserably failed at ensuring that vacancies are filled up on time. Everybody knows who is going to retire when. Why not start the process six months before? The Centre gives least priority to appointment of judges. They continue to violate directions from the Supreme Court.

. Another cause for pendency is the vast number of cases instituted by the state government. The Advocate General must call his legal officers and ask them to interact with the heads of the departments of the state. They should be educated as to how things work in court. If this happens, 60% of all writ petitions filed by the state can be resolved in a matter of five to ten minutes. Most of the government’s orders do not stand the test of law.

. AK: What were your most memorable cases?

. DLN: I have handled quite a lot of mining cases. I don’t want to blow my own trumpet, but over the last two decades, 70% to 75% of the mining cases were handled by me. I have also given opinions for the mining policies of different states.

. I remember a case which was related to the compensation aspect in mining law. A person was the owner of a land which had a lot of minerals. So when it was acquired, he wanted compensation for those minerals.

. One lawyer came to me and asked for an opinion, without mentioning the names of the parties. I gave my opinion, and two weeks later, another lawyer representing the beneficiary of the acquisition came to engage me. When I appeared in court, the lawyer who had earlier come to me for an opinion objected to my appearance! I stepped down, and told him that he had not told me the names of parties.

. After the case was heard for three days, the judges sent for me and appointed me as Amicus! With the permission of the lawyers and the court, I gave them the position in 15-20 minutes and that became a judgment of the court. It gives you great pride when the court calls upon you for assistance.

. Another example is the underground Metro in Bangalore. The government initially made a scheme of having the Metro on elevated pillars from KR Circle to MG Road. A PIL was filed saying that it would deface the whole of Cubbon Park and would violate the state Act and judgment of the Supreme Court. In that case, Chief Justice JS Khehar appointed me as an Amicus.

. I called the heads of all related state departments and had a meeting. For five hours, I scouted the entirety of Cubbon Park. Based on my study, I submitted a report stating that there should be an underground system for this area. The report was accepted by the Chief and the Metro developers, and that is how the system works today.

. In the case filed by SP Hiremath, I appeared for certain mine owners from Bellary. Not Janardhana Reddy ( laughs ). I have never handled even half a case so far for him. So I appeared before what was known as the Forest Bench of the Supreme Court.

. I had made a request to submit for 45 minutes, and the Bench headed by Justice Aftab Alam granted me half an hour. I started arguing and kept looking at the clock, when Justice Alam said, ‘Don’t look at the clock, you are doing very well’. 45 minutes later, his Lordship asked me to continue, and after an hour, I stopped. The Bench told me that I had raised issues that were not raised by the other lawyers and said that I had done a very good job. One of the judges showed me his notepad and said, ‘I have taken ten pages of notes based on your arguments!’

. Before I turned from the Bench, somebody held my arm. I looked back, and it was the great Fali Nariman . He patted my back and said, ‘Very well done’. I was so happy.

. But the tragedy is that when the judgment came out, I found that it didn’t even carry my name, much less my submissions are recorded. It was very disappointing.

. AK: Any advice for young lawyers?

. DLN: One piece of advice that my father gave me was, ‘Go to the office before your senior comes’. Read all the files and make notes in your own handwriting. Once I write in my own hand, I get a photographic memory. Even today, I do that. When you are done with your work, go to court and sit there when they are arguing.

. There are two kinds of observers – participant and non-participant. As a participant observer, while you are arguing the case, you observe your opponent. You should have the ability to think on your legs and observe the body language and expression of the judge and your opponent.

. Apart from this, you must not be afraid to admit that you have not understood something. When you go to the court, you tend to get nervous. Fortunately for me, there were good judges who encouraged youngsters. Some judges even told us to speak in Kannada if we found it difficult to speak in English.

. (Views expressed in this interview are of Senior Advocate DLN Rao. Bar & Bench neither endorses nor is responsible for the same)

Most of the government’s orders do not stand the test of law, Senior Advocate DLN Rao

Aditya AK

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